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V61kerrecht
11. Dokumente
Anwendung des Kelloggpaktes, insbechinesisch-japanischen Streitfall-)
zur
sondere im
1. Rede des Staatssekretlirs der Vereinigten Staaten, Stimson,
Council on Foreign Relations am 8. August 19322)
vor
dem
Four years ago the United States joined with France in the initiation
of the Pact of. Paris
the so-called Briand-Kellogg Pact for the Renunciation of War. A. year later, in, iq the Pact became formally
-
effective, and it has
now been adhered to by sixty-two nations.
Scarcely
had its ratification been announced on July
24, 1929, when it became
subjected
to the first. of
a series of difficult challenges. which are still
In the defense of the Pact in these tests the American Governgoing
ment has been a leader. I believe it would be appropriate, in the I ight
of this three years' history, to take stock now of what the Pact is, the
on..
direction in which it is
developing, and,the part which we may hope
eventually -will -,play in the affairs of the world.
I-Events have been moving so rapidly since the World War, and
that it
-I
we
have been
so
close to
them, that it is difficult
to obtain
an
adequate
think, therefore, that it would be well to summarize
perspective.
briefly the background out of which this great treaty came and against
which it must be judged.
I
-
Prior to the World War many men had had visions of a warless
world and had made efforts to accomplish the abolition of war, but
these efforts had never resulted in
any very general or effective combinations of nations directed towards that end. During the centuries
which had elapsed since the beginnings of international law, a large
part of that law had been
a. development of principles based upon
The existence and legality of war were to a large
extent the central facts out of which these legal
principles grew and
on which they rested. Thus the
development of the doctrine of neutrality
the existence of
war.
Was predicated upon the duty of a neutral to maintain
impartiality
between two belligerents.
This further implies that each belligerent
has equal rights and is owed equalduties by the neutral. It implies
that the war between them is a legal situation out of which these
rights
and
obligations grow. Therefore, it is contrary tQ,this aspect of international law for the neutral to take sides between
belligerents or to
pass a moral judgment upon the rightfulness or wrongfulness. of the
cause
of,either ---,at least to the extent of translating such a judgment
So long as a neutral exercised this 'strict
impartiality,
into action.
I) Vgl. Asche G r a f v o n M a n d e 1 s 19 h, 'Die Auslegung des Kelloggpaktes durch
den amerikanischen Staatssekretär Stimson, T. i dieses
Bandes, S. 617 ff -; sowie die in
dieser Zeitschrift Bd. 2, T. 2 S.
272 ff. abgedruckten Dokumente.
2) Foreign Affairs, special supplement vol. ii, no. i, franz6s. Cbersetzung Europe
no- 76o, 3- sept. iq S.
1059; Rev. de Droit Int. (La Pradelle) X (1932), p. 640.
Nouvelle
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international law afforded to him, his commerce, and his property,
rights of 'protection. And during the generations which preceded the World War much of the growth of international humanita-
certain
associated with attempts, not to abolish war but to narrow
by the development of these-, doctrines
of neutrality. Their chief purpose was, to produce oases of safety for
life and property in a world which still recognized. and legalized the
rianism
was
and confine its destructive effects
destruction of human life and property as one of the regular methods
for the settlement of international controversies and the maintenance,
of international
policy.
The mechanical inventions of the century preceding the World
War, and the revolutionary changes in industrial and social organization
by which they were accompanied, have, however, produced inevitable
effects upon the concept of war which I have described. Communities
and nations became less self-contained and more interdependent; the
populations of industrialized states became much larger and more
dependent
for their food
supplies
upon far distant sources; the, civilized
world thus became very much more vulnerable to war. On the other
hand, -with these mechanical advances modern armies became more
easily transportable and therefore larger and were armed with far
more destructive weapons.
By these changes on either side the in-
consistency
of
war
with normal life became
sharper and
more
acute;
emphatic; the
abnormality of war became more apparent. The laws of neutrality
became increasingly ineffective to prevent even strangers to the original
quarrel from being drawn into the general conflict.
Finally there came the World War, dragging into its maelstrom almost the entire civilized world; tangible proof was given of the impossibility of confining modern war within any narrow limits; and it became
the destructiveness of
war
to civilization became
evident to the most casual observer that
more
if this evolution
mitted to continue, war, perhaps the next war, would
utterly destroy our civilization.
drag
were perdown and
Before this war was over it began to be called "a war to end war",
and at the Peace Conference at Versailles the victorious nations entered
into a covenant which sought to reduce the possibility of war to its
lowest terms.
entirely
to
The
prescribe
in which such
wars
League
wars
of Nations Covenant did, not undertake
between nations.
might
occur
without
It left unrestricted
reprobation.
a zone
Furthermore,
provided under, certain circumstances for the use of force by the
community of nations against a wrongdoer as a sanction. It created
a community group of n4tjjons pledged to restrict war and equipped
with
Some of this machinery, notable
for.that purpose.
article ii, which provides, on a threat of war, for the calling of a conit
ference for purposes of conciliation, has on several occasions proved
Another important
a valuable influence in the prevention. -of war.
and beneficent result of the League organization has been the regular
conferences
which
are
held between the
representatives
of the different
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nations.
These discussions have often
proved
t o be effective
for the -settlement of controversies and thus 'for
war prevention
By
developed, particularly among the nations
of Europe, a community spirit which can be evoked to prevent war.
In all of these. ways there has been produced the beginning of a group
sentiment which is wholly at variance with some of the old doctrines
them there also has been
in respect to war.
Nine years later, in
1928, came the still more sweeping .step of
the Pact of Paris, the Briand-KelloggTreaty. In this treaty substantially
all the nations of the world have united in a covenant in which they
renounce
war
relations with
all
be
altogether
one
as
an
instrument of national
another 'and have
disputes or conflicts of whatever
sought except by pacific means..
agreed
policy
in: their
that the settlement of
nature among them should
never
The change of attitude on the part of world public opinion toward
former customs and doctrines, which is evidenced by these two treaties
is so revolutionary that it is not surprising that- the progress has outstripped the land,marks and orientationof many observers. The treaties
signalize a revolution in human thought, but they are not the result.
of impulse or thoughtless sentiment.
At bottom they are the growth
of necessity, the product of a consciousness that unless some such step
were taken modern civilization might bee doomed.
Under its present
organization the world simply could not go on recognizing war, with
its constantly growing destructiveness, as one of the normal instrumentalities of human life. Human, organization has become too complex,
too fragile, to be subjected to the hazards of the new agencies of, destruction turned loose under the sanction of international law.
entire central
point
SO the
from which the
problem was viewed Was changed.
War between nations was renounced by the signatories of the BriandKellogg Pact. This Means that it has become illegal throughout practically the entire world, It is no longer to be the,source and subject
of rights. It is no longer to be the principle around which the duties,
the conduct, and the rights of n ations revolve.
It is an illegal thing.
Hereafter when two nations engage in armed conflict either one or
violaters of the general treaty.
wrongdoers
We no longer draw a circle about them and treat them with the
punctilios of the duelist's code. Instead we denounce them as law-
both of them must be
-
breakers.
By that very act we have made obsolete many legal precedents
and have, given the legal profession the task of re-examining many of
its codes and treatises.
Thelanguage
of the
Briand-Kellogg Treaty
and the
contempo-
statements of its founders make its purpose clear.
Some of its
critics have asserted that the Pact, was really not a treaty at all; that
raneous
it
was
mere
intended to confer rights and impose liabilities; that it was.
group of unilateral statements made by the,signatories, declaring
not
pious
purpose
on
the part of each, of which purpose that
signatory
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judge and executor, and for a violation of which
no other signatory-could -call'him. to account.
Jf such an interpretation were correct, it would reduce the Pact
to a mere gesture.
If its promises conferred no, rights as between -the
members of the community of signatories, it would be a sham. It would
be worse than a nullity, for its failure would carry down the -faith* of
w,as to be the
sole
-
-
the world in other efforts for peace.
But such critics. are wrong. There is
the Pact
nothing
in the
language
of
in its contemporaneous history. to. justify any -such an
interpretation. On its face it is a treaty containing definite promises.
nor
preamble it expressly refers to the "benefits furnished by, this;.
treaty", and states that any Signatory. power violating. its.-promise
Shall be denied those benefits. The correspondence of 'the: framers. Of
the treaty shows that they intended it to be a treaty which,: Would
confer benefits which -might be lost by a violation thereof. During
the period when the treaty was under -negotiation, Mr.'Kellogg declared
In its
in
a
"If
public address,
war
body on March 15, 1928:
conclusiop,of a specific
through
made before, this very.
is to be abolished it must be
treaty solemnly binding the parties
It cannot be abolished
by
a mere
the
not to resort to
war
with
one
another.
preamble of a treaty."
tenaciously fought for
declaration in the
In dr afting the
treaty Mr. Kellogg rightly and
prohibition free from.any detailed definitions or reservations,
In his own.words, he sought "a treaty so simple. and unconditional
that the people of all nations could understand it, a declaration which
could be a rallying point-for world sentiment, a. foundation on which
to build a world peace."
Any other course % have opened the
a.
clear,
terse
.door to technicalities- and destructive limitations.
war
As it stands, the only limitation to the broad covenant against
is the right of self-defense. This right is so inherent und universal
that Jt
was
treaty.
It is also
not
It exists in the
in
deemed necessary
so well understood
case
even
that,
expressly
in the
it does not weaken the
treaty.,."
to insert it
of the individual under domestic law,
as
well
as
of the nation and its%citizens under the law of nations. Its
the
A nation
limits have been clearly defined by, countless precedents.
case
which
sought
to mask
imperialistic policy
under the
of its nationals would soon be unmasked.
confuse
in
a
or
journalistic
can
be
of the defense
to.
long hope
subject so well understood
easily ascertained as they can
on.a
so
conditions of
or
be
to-day.
Briand-Kellogg Pact Provides for.no sanctions of force.
does not require any signatory to intervene with measures of force
case the Pact is violated. Instead it rests upon the sanction"of public',
Again,
It
public opinion
world in which facts.
under the
in
mislead
guise
It could not
the
opinion,which can,be made one of the most potent sanctions in the
Any, other course, through the 'possibility
y of entangling the
signatories in- international politics, would have confused the broad
and sirnple aini of the treaty and- prevented the ckvelopment of that
public opinion upon',which it most surely relies. Its -1 efficacy. depends
world'.
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u.
V61kerr.
Bd- 3. T.
2:
Urk.
40
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If they
to make',it effective.
upon the will of the'people of the world
desire to make it effective, it will be irresistible. ,Those critics who
scoff at it have not accurately appraised the evolution in world opinion
since the World War.
From..the day of its ratification on July 24, 1929, it has been the
determined aim of the American Government to make this sanction
-of
public opinion effective
and. to insure that the Pact of Paris should
world. We have recognized the hopes
represented. We have resolved that they should not be disappointed. We have recognized that, its effectiveness depends upon
the cultivation of the mutual fidelity and good faith of the group of
nations which has become its signatories, and which comprise virtually
become
a
living force
in the
which it
We have been determined that the
all, of the nations of the world.
order represented by this, great treaty shall not fail.
new
In' October'I929 President Hoover joined with Mr. Ramsay Mac
Donald, the Prime Minister of Great Britain, in
Rapidan
the
to
but
its
in which
accept the Peace
as a
they
Pact not
positive obligation
pledge."
declared: "Both
only
as
a
joint
an
statement at
Governments resolve
declaration of
to direct national
That declaration marked
our
a
policy
epoch.
good intentions,
in accordance with
In the summer of 1929 hostilities threatened between Russia and
Both nations were signatories of theChina in northern Manchuria.
Pact. It was the most difficult portion.of the world in which such a
this treaty could have occured. Yet we at once took steps
challenge'to.
to'organize public opinion
the Governments of Great
in favor of peace.
We communicated with
Britain, Japan, France, Italy and Germany,
and the attention of the Governments of Russia and China was formally called tO'. their obligations under the Treaty. Later during the same
autumn., when hostilities actually broke out and military forces of
Russia had. crossed the Manchurian boundary and attacked the forces
Government communicated with all the signatories of
the Pact, suggesting that -they urge upon Russia and China a peaceftil solution of the. controversy between them.
Thirty-seven of these
of China,
our
nations associated themselves with our action or signified their approval
Although the aspect of the controversy had been exand the forces of Russia had penetrated nearly
threatening
.tremely
the restoration of
a hundred miles within the boundaries of China,
of our.attitude.
the status quo ante was accepted by both parties and the invading
forces were promptly withdrawn.
Two years later, in September 1931, hostilities broke out between
the armed forces of Japan and China in the same quarter of the world,
Manchuria, and the situation was brought to the'attention of the Council
of the League of Nations, which happened to be *then in session at
Geneva. Our Government was invited to confer as to the bearing of
We promptly- accepted
Pact of Paris upon the controversy.
meet with the Council
to
Ahe invitation, designating a representative
two
the
of
attention
andAhe
for that purpose;
disputants was called.
of the
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to their
obligations under the Pact by France, Great Britain, Germany,
those nations, other
Italy,. Spain, Norway and the United States
than the United States, being members of, the Council then in session.
The hostilities between Japanese and Chinese armed forces continued and protracted efforts towards conciliation were made by the
Council of the League, which had taken jurisdiction of the matter.
The American Government maintained its. attitude of sympathetic
-cooperation with the efforts Of the Council and acting independently
through the diplomatic channels endeavoured to re-enforce the Council's
efforts at conciliation.
Finally, when in spite of these efforts Japan
had occupied all of Manchuria, the American Government formally
notified both that country and China, on January 7, 1932, that it would
not recognize any situation, treaty, or agreement which might be brought
about by means contrary to the covenant and obligations of the Pact
Of Paris.
Subsequently, on March 'ii, this action of the American
Government was endorsed by the Assembly of the League of Nations,
at a meeting in which fifty nations were represented. On that occasion,
under circumstances of the utmost formality and solemnity, a resolution
was
adopted, unanimously, Japan alone refraining from voting, in
which the Assembly declared that, "it is incumbent upon the members
-of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant
-
of the
are
League
of Nations
or
to the Pact of Paris."
These successive steps cannot be adequately appraised unless they
measured in the light of the vital change of point of view.which
1 have described in the
opening of this address. They were the acts
together by a new viewpoint towards
war, as well-as by covenants which made that viewpoint a reality.
Except for this new viewpoint and these new covenants, these transof nations which
were
bound
actions in far-off Manchuria, under the rules of international law theretofore obtaining, might not have been deemed the concern of the United
States and these
fifty
international law when
concern
other nations.
a
o0y of the parties
Under the former
concepts of
conflict occurred, it. was usually deemed the
to the conflict. The others could only exercise
and express a strict neutrality alike towards. the injured and the aggressor. If they took any action or even expressed an opinion, it was
likely
it
in
to be deemed
directed.
a
hostile act
preventing a
given legal recognition.
been
towards the nation
against
which
The direct individual interest which every nation has
war had not yet been fully realized, nor had that interest
But
now
under the covenants of the
Briand-Kellogg Pact such a conflict becomes of legal -concern to everybody connected -with the Treaty. All of the steps taken to enforce
the treaty must be judged by this new situation. As-was said by Mr.
Briand, quoting the words of President Coolidge: "An act of war in
any part of the World is an act that injures the interests of my country."'
The world has learned that great lesson and the execution of the BriandKellogg Treaty codified it.
40*
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Thus the power of the Briand-Kellogg Treatycannot be adequately
appraised unless it is assumed that behind it rests the combined we.ight
of the opinion of the entire world united by -a deliberate covenant which
its moral judgment. When
gives to each nation the right to express
the American Government took the responsibility of sending its note
of January 7 last, it was a pioneer. It was appealing to a new common
sentiment and to the
refusal to
recognize
provisions
the fruits of
Treaty as yet untested. Its ownaggression might be of comparatively
of
a
But when the entire group of civilized
an aggressor.
nations took their stand beside the position of the American Government, the situation was revealed in its true sense. Moral disapproval,
when it becomes the disapproval of the whole world, takes on a signilittle moment to
international law. For never before has
international opinion been so organized and mobilized.
Another consequence which follows this development of the BriandfiCance hitherto unknown
in
Kellogg Treaty, which I have been describing, is that consultation between the signatories of the Pact when faced with the threat of its violation
becomes irfevitable.
Any effective invocation of the power of world
and consultation. As long as the signatories
discussion
involves
opinion
of the Pact of Paris support the policy which the American Government has endeavored to establish during the past three years of arousing
a united and living spirit of public opinion as a sanction to the Pact,,
as long as this course is adopted and endorsed by the great nations of
the world who -are signatories of that Treaty, consultations will take
place as an incident to the unification of that opinion. The course which
was followed in the Sino-Japanese controversy last winter conclusively
which threatened thia
proves thatfact. The moment a situation arose
effectiveness of this Treaty, which the peoples of the world have come
to regard as so vital to the protection, of their interests, practically all
the nations consulted in
purposes of that Treaty.
That the Pact thus
an
effort to make effective the great
necessarily
carries with it the
peaceful
implication
of
yet been fully appreciated by its wenwishers who have been so anxious that it be implemented by a formal
provision for consultation. But with the clarification which has been given
consultation has
perhaps
not
significance by the developments of the last three years), and the
vitality with which it has been imbued. by the positive construction
put upon it, the misgivings of these well-wishers should be. put at rest.
That the American people- subscribe to this view is made clear by the
fact that each of the platforms recently adopted by the two great party
conventions at Chicago contains a plank endorsing the principle of
to its
consultation.
Briand-Kellogg Treaty which I have
been discussing
great and permanent policies.
It is founded upon conceptions of law and ideals of
01f our nation,
which'
peace which are among our most cherished faiths. It is a policy
I believe that this view of the
will become
one
of the
combines the readiness to co6perate for peace and
justice
in the world,
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595
which Americans have
always manifested, while, at the same time it
preserves the independence of judgment and the flexibility of, action
I believe that this policy must
upon which we have always insisted.
strike, a chord'of sympathy in the conscience of other nations. We all
I
feel that the dreadful lessons
calamity
taught by
The determination to abolish
forgotten.
must
be relaxed.
not
the World War must not be
which emerged from that
war
These
aspirations of the world are
great Treaty.
only by continued vigilance that
it can be built into an effective living reality. The American people
are serious in their support and evaluation of the
Treaty, They will not
fail to do their share in this endeavor.
expressed
2..
an
in this
It is
Schreiben des Staatssekretärs der
Vereinigten Staaten" Stimson,
Auswärtigen Ausschusses des Senats, Senator
Februar 1932, betr. die Politik der Offenen Tür, in
den Vorsitzenden des
Borab,
vom
24.
C
China und den
My
Kelloggpakt 3)
dear Senator Borah: You have asked my
has been sometimes
opinion whether,
as
recently suggested, present
conditions in China
have in any way indicated that the so-called Nin6 Power Treaty has
become inapplicable or ineffective or rightly in need of modification,
and if sol what I considered should be the policy of this Government.
This
treaty, as you of course know, forms the legal basis upon which
"open door" policy towards China. That Policy, enunciated
by John Hay in 1899, brought to an end the struggle among various
powers for so-called' spheres of interest in China which was threatening
thedismemberment of that emp ire. To accomplish this Mr. Hay invoked
now
rests the
two
principles
(i) equality of commercial op.portunity among all
dealing with China, and (2). as necessary to that equality the
pres.ervation of China's territorial and administrative integrity.
These principles were not new in the foreign policy of America.
They had been the principles Upon which it rested in its dealings with
other nations for many years. In the case of China they were invoked
to save a situation which not only threatened the future
development
and sovereignty of that great Asiatic people, but also threatened to
,create dangerous and constantly increasing rivalries between the other
nations of, the world. War had already taken place between'Japan and
-
nations in
China.
vent
At the close.of -that
Japan
war
three other nations intervened to pre-
from
obtaining some of the results of that war claimed by
her. Other nations sought and had obtained spheres of interest. Partly
asIa result of these actions a serious
uprising had broken out in China
which endangered the legations of al of the powers at Peking. While
the attack'on th*ose legations was in progress, Mr. Hay made an announcement in respect to this. policy as the principle
upon which the powers
should act in the settlement of the rebellion.
3)
U. Stat.
Daily,
25. Febr. 1932,
Yearly
He said
Ind. P. 2903.
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"The policy of the Government of the United States is to seek
solution which may bring about permanent safety and peace to China,
preserve Chinese territorial and administrative entity, protect all rights
a
to friendly powers by treaty and international law,
safeguard for the world the principle of equal and impartial trade
all parts of the Chinese Empire."
guaranteed
He
the
was
successful in
obtaining
and
with
the assent of the other powers to,
thus announced.
policy
In taking
Hay acted with the cordial support of
responding to Mr. Hay's announcement,
above set forth, Lord Salisbury, the British Prime Minister,, expressed
himself "most emphatically as concurring in the policy'of the United
these steps Mr.
the British Government.
In
States.
For twenty years thereafter the Open Door policy rested,-,upon the
informal commitments thus made by the various powers,
But in the
Winter of 1921 to 1922, at a conference participated in by all of the
prindIPal powers which had interests in the Pacific, the policy was
crystallized into the so-called Nine Power Treaty,. which gave definition
and precision to the principles upon which the policy rested.
In the
first article of that
Treaty,
the
contracting
powers, other than
China,
agreed
i.
--.
sovereignty, the independence
integrity of China.
To respect the
and administrative
and
the territorial
provide the fullest and most unembarrassed opportunity to
develop and maintain for herself an effective and stable govern-
To
China to
ment.
use their influence for the purpose of effectually establishing
maintaining the principle of equal opportunity for the commerce
and industry of all nations throughout the territory of China.
4. To refrain from taking advantage of conditions in China in order
to -seek special 'rights, or privileges which would abridge the rights of
subjects or citizens of friendly States, and from countenancing action
inimical to the security of such States.
This treaty thus represents a carefully developed and matured
international policy intended, on the one hand, to assure to all of the
contracting parties their rights and interests in and with regard t(>
China, and on the other hand, to assure to the people of China the
fullest opportunity to develop without molestation their sovereignty
and independence according to the modern and enlightened standards
believed to maintain among the peoples of this earth. At the time this
treaty was signed, it was known that China was engaged in an attempt
to develop the free institutions of a self-governing republic after her
3. To
and
recent
revolution from
an
autocratic form of government; that she
would require many years of both economic and political effort to that
end; and that her progress would necessarily be slow.
The treaty wa thus a covenant of self-denial among the signatory
powers in deliberate renunciation of any
policy
of
aggression
which
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597
tend to interfere with that
and
development. It was believed
development of the "Open Door" policy reveals
that faith
that only by such a process, under the protection of such.
an agreement, could the fullest interests not only of China but of all
the whole
history
-
of the
-
nations which have intercourse with her best be served.
In its report to the President announcing this treaty, the American
the then Secretary of State, Mr. Charles E.
Delegation, headed by
Hughes, said
"It is believed that
has at least been made
During
the
course
through'this treaty
a
----"The British
the old
Door" in China
delegation, Lord Balfour, had
.-Empire,- deleaation--understood
around
any power
the
table
practice of spheres
treaty,:
stated that
that there
who
no
was
thought
advocated by
that.
of interest was either
any
would be tolerable to this conference.
So far as the
Government were concerned, .they had, in the most formal
government
British
of
"Open
of the discussions which resulted in the
the chairman of the British
representative
the
fact."
-
or
publicly announced that theyregarded this, practice as utterly
inappropriate to the existing situation."
At the same time the representative of Japan, Baron Shidehara,
announced the position of his government as follows:
."No one denies to China,her sacredright to govern herself. No:
manner,
one
stands in the way of China to work.out her
own
great national
destiny."
The treaty
the British
Portugal.
was
originally
execilted, by, the United States,
Belgium,_
Empire, China, France, Italy, Japan, The Netherlands and
Subsequently it was also executed by Norway, Bolivia,
Sweden, Denmark and Mexico.
yet ratified it.
Germany
has
signed
it but her Parlia-
ment has not
It must be remembered also that this treaty was one of several
treaties and agreements entered into at the Washington Conference
by the various powers concerned, all of which were interrelated. and
interdependent. No one of these treaties can be disregarded without.,
disturbing the general understanding and equilibrium which were. intended to be accomplished and effected by the group of agreements arrived
at in their entirety.
The Washington Conference was essentially a
disarmament conference, aimed to promote the possibility of peace
in the world not only through the cessation of competition in naval
armament but also by the solution of various other disturbing problems
which threatened the peace of the world, particularly in theTar East.
These problems were all interrelated.
The willingness of the American Government to surrender its then
commanding lead in battleship construction and to leave, its positions
at Guam and in. the Philippines without further. fortification, -was predi-,
cated upon, among other things, the self-denying covenants contained
in the Nine Power Treaty, which assured the nations of the world not
only of equal opportunity for their Eastern trade, but als o against, the:
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598
military aggrandisement
One
can
not discuss the
provisions
of any other power at the expense of China.
possibility of modifying or abrogating. those:
of the Nine Power
Treaty without, considering
at the same
upon which they were really dependent.
Six years later the policy of self-denial against. aggression by a
stronger against a weaker power, upon which the Nine Power Treaty
time the other
promises
had been based, received apowerful reinforcement by the execution
substantially all tht-, nations of the world of the Pact of Paris, the
-called
Kellogg-Briand
Pact.
two treaties
,These
by
so-
represent independent
but harmonious steps taken for the purpose of aligning the conscience
and public opinion of the world in favor of a system of,orderly development by the law of nations -including the settlement of all controversies
and peace instead of by arbitrary force. 'The
the
for
protection of China from outside aggression is an
pro-gram
essential part of any such development. The signatories and adherents
of the Nine Power Treaty rightly felt that the orderly and peaceful
by
methods of
development of the 400 millions of,people inhabiting China was necess.ary
to the peaceful welfare of the entire world and that no program, for the
welfare of the world as a -whole could afford to neglect the -welfare and
protection fof China.
The recent events which have taken place in China, especially the
hostilities which having been begun in Manchuria have latterly been
extend to Shanghai, far from indicating the advisability of any Modification of the treaties we have been discussing, have tended to bring
home the vital importance of ,the faithful observance of the covenants
therein to all of the nations interested ir! the Far East. Itis not necessary
in that connection to inquire into the causes of the controversy or
apportion the blame between the two nations which are
for regardless of cause or responsibility, it is clear
involved;
unhappily
attempt
to
that a situation has developed which cannot,
the
any circumstances, be reconciled with the obligations of
faithhad
been
treaties
covenants of these two treaties, and that if the
fully observed such a situation could not have arisen. The signatories
beyond peradventure,
under
of. the Nine Power Treaty and of the Kellogg-Briand Pact who -are not
parties to that conflict are. not -likely to see any reason for 'modifying
theterms of those treaties., To. them the real value of the faithful performance of- the treaties. has been brought sharply home by the perils
and losses to which their nationals have been
That is the view of this Government.
doning
the
enlightened principles
We believe that
this
which
situation would
are
subjected
We see,
in
no reason
Shanghai.
for aban-
embodied in these treaties.-
havebeen avoided
had these c0_'
evidence has come to us to infaithfully observed,
dicate that, a due compliance Iwith them would have interfered with the
adequate protection of the legitimate rights in China of the signatories
venants been
of those treaties and
no
their nationals.
this Governs
Jan 7 last, upon the instruction of the Pre'ident,
not
it
China
that
and
wo-LA4
recognize
formally noticed Japan
On
ment
and
-
-
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Noten
599
situation, treaty or agreement entered into by those governments
violation of the covenants of these,treaties, which affected the rights
of our Government or its citizens in China. If a similar decision should
be reached and a similar position taken by the other governments, of
the world, a caveat will be placed upon such action which, we believe,
any
in
bar the -legality hereafter of -any title or right sought
by pressure or treaty violation, and which, as has been
shown by history in the past, will eventually. lead. to the restoration
to China of.rightS ai titles of which she may have been deprived,
In the past our Government, as. one of the leading powers on,,the.
Pacific Ocean ,has rested its policy upon an abiding faith in the future
of the people of China and upon the ultimate success in dealing,with
them of the principles of fair play, patience, and mutual goodwill. We
appreciate the immensity of the task which lies before her. statesmen
in the development of her country and its government. The
delays in
her progress, the instability of her attempts to secure a responsible
government, wer,e foreseen by Messrs., Hay and Hughes and their
contemporaries and were the very obstacles which the policy of the
'Open Door' was designed to meet. We concur with those statesmen,
representing all the nations in the Washington Conference who decided
that China was entitled to the time necessary to accomplish her development. We are prepared to make that our policy for the future.
will,effectively
to be obtained
-
-
3., Note der
Vereinigten Staaten an China
7. Jdnuar 1932 4)
und
Japan
vom
"With the recent military operations about Chinchow, the last
remaining administrative authority of the government of the Chinese
Republic in South Manchuria, as it existed prior to Sept. 18., 1931,
has been destroyed. 'The American Government continues confident
that the work of the neutral commission recently authorized by the
Council of the League of Nations will facilitate an ultimate solution
of the difficulties now'existing between China and Japan.
But in view of the present situation and of its own rights and
obligations therein, the American Government deems it to be its duty
to notify both the Imperial Japanese government and the government
of the Chinese Republic that it cannot admit the legality of
any situation
de facto nor does it intend to recognize
any treaty or agreement entered
into between those governments, or agents thereof, which may impair
the treaty rights of the United States or its citizens in China, including
those which relate to the so vereignty, the independenc or the territorial and administrative integrity of the Republic of China, or to the
international policy relative to China, commonly known as the open
door policy; and, that it does not intend to recognize
any situation,
treaty or agreement which may be brought about by means contrary
4) United States.Daily
v.
8.
Jan. 1932,.Yearly
ind. 2521.
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600
to
obligations of the Pact of Paris of Aug. 27, 1928,1
treaty both China and Japan, as well as the.United States,
the covenant and
to which
are
4.
parties."
Note
Chinas
an
StaAten
Vereini-ten
die
vom
19. Januar
1932
(Auszug) 5)
"I have
lency's
oben
the
honor
dated
note
to
acknowledge
the
Jan. 8, 1932, stating that,
receipt, of Your Excel(Iolgt der Wortlaut der
zu 3. abgedruckten Note)
With reference to the notification of Your'
ment that in this matter it does not
recognize
Excellency's Governlegal any situation
as
de' facto, I have the -honor to state, that the .Chinese- govern m6nt has
repeatedly lodged with the Japanese government gravest protest against
I
the
and lawless acts
invasions
various
perpetrated by
the
Japanese
troops since Sept. 18, 1931, and has made it known internationally
that the Chinese government accords them no recognition whatsoever.
With regard to the treaties or -agreements referred to in the note
under
its
government,
independence and on the
territorial and administrative integrity, has absolutely
of concluding any treaties or agreements-of the categories
position
of
principle
no
I have the honor to state that the Chinese
reply,
basing
intention
on
its
sovereignty
and
described.
hope of the Chinese government that Your ExGovernment
will continue to promote, the effectiveness of
cellency's
the international covenants in order that their dignity may be conserved.
It is the sincere
5.
Note
Japans
an
die
Staaten,
Vereinigten
vom
16. Januar 1932
(AuSZUg) 6)
"I have the honor to
note dated
the receipt,of Your Excellency's
has had the most careful attention of this
acknowledge
Jan. 8, which
Government.
The Government of
Japan
were
well
aware
of the United States could always be relied
on
that the Government
to do
everything
in
their power to support Japan's efforts to secure the full and complete,
fulfillment in every detail of the Treaties of Washington and the Kellogg
Treaty for the outlawry of war. They are glad to receive this additional.
assurance
As
of the
as
has
of the
of the fact.
Excellency specifically mentions
'open-door', the Japanese Government
stated, regard that policy as a cardinal feature
regards.the question
policy
so
often been
politics
5)
U. Stat.
6)
U. Stat.
which Your
of the so-called
of the Far East, and
Daily,
Daily,
18.
18.
only regrets
Jan. 1932, Yearly Incl. P.
Jan. 1932, Yearly ind.,p.
that its effectiveness
26oo.
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601
is
so seriously diminished by the unsettled *conditions which prevail
throughout China. In so far as they can secure it, the policy of the open
door will always be maintained in Manchuria, as in China proper.
They take note of the statement by the Government of the United
States that the latter cannot admit the legality of matters which might
impair the treaty rights of the United States or its citizens ,or which
might be brought about by means contrary to the Treaty of Aug. 27,
1928. It might be the subject of an academic doubt, whether in a given
case the impropriety of means necessarily and always avoids the ends
secured, but as Japan has no intention- of adopting improper means,
that question does not practically, arise.
It may be added that
the, treaties which relate to China must
necessarily be app with'-due regard, to the state, of -affairs from time
to time prevailing in that country, and that the present' unsettled and
distracted state of China is not what was in the contemplation of the
high contracting parties at the time of the Treaty of Washington. It
was certainly not satisfactory then: but it did'not display that disunion
and,-those antagonisms which it does today. This cannot affect the
binding character of the stipulations of treaties: but it may in material
respects modify their application, since they must necessarily be applied
with reference to the state of facts as they exist.
Appel, en date du 16 f6vrier 1932, adress6 au Gouverneipent
Japonais par le pr6sident du Conseil, au nom des Membres du Conseil
autres que les repr6sentants de la Chine et du Japon 7)
6.
un
Le Pr6sident Au Conseil, parlant au nom de ses coll6gues, dans
appel adress6 aux deux parties le :29 janvier, disait: #Seuls, la col-
laboration et le respect mutuel peuvent
garantir le maintien des relations
r6glement de caract.6re permanent ne saurait
6tre obtenu par Femploi de la force, qu'elle. soit militaire, qu'elle soit
m6me 6conomique;.
plus la situation actuel.le se, prolongerait, plus
la m6sentente entre les deux peuples grandirait, rendant, la. solution
du diff6rend plus difficile et causant un grave pr6judice, non seuleinternationales;
aucun.
-
deux nations directement interess6es, mais au. monde entier.#
Aujourd'hui, les membres du Conseil autres que les repr6sentants
de la Chine et du Japon, ont Fobligation d'adresser au. Gouvernement
ment
aux
japonais un pressant. appel pour qu'il reconaisse les responsabilit6s
particuli6res et le devoir de mod6ration et de sagesse qu'impose an
Japon, dans le conflit actuel son titre de Membre de la Soci6t6 des
Nations et occupant au Conseil un si6ge permanent.
La situation, qui s'est d6velopp6e en Extr6me-Orient au cours, de
ces derniers mois, fera Fobjet d'une 6tude compl6te de la part de la.
Mais depuis
Commission nomm6e avec le consentement des parties.
7)
Soc. d. Nat.,
jdurn.
Off. X11Je Ann6e, No. 3
(Premi6re Part'e)
Marz 1932, S.
383-
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que cette Commission a 6t6 constitu6e, il s'est produit et il se produit
encore h Chang-Hai et dans la r6gion de Chang-Hai des 6v6nements
qui ont augment6 1'6motion de l'opinion publique, qui meftent en
p6ril la vie et, les int6r6ts des ressortissants de nombreux pays et qui
ont ajout6 aux difficult6s exceptionnelles que rencontre le monde dans
la crise
qu'il traverse; ils menacent de cr6er de
obstacles h la Conf6rence du d6sarmement.
Les
douze
membres
du
et s6rieux
nouveaux
Conseil n'oublient millement les
griefs
par le japon, et ils -lui ont, au cours des mois 6coul6s, accord6
la
h laquelle a droit un associ6 de la premiere heure,
confiance
toute
qui observa toujours scrupuleusement ses obligations et ses devoirs
invoqu6s
.de Membre de la communaut6 internationale.
remettre
Ils
ne
peuvent cependant
que le japon n'ait pas jug6 possible de s'en
r6serve aux m6thodes de r6glement pacifique stipUl6es
de
s'emp6chor
regretter
9
sans
dans le Pacte de la Soci6t6 des Nations; ils lui
plus, 1'engagement solennel du Pacto de Paris,
solution des.diff6rends internationaux
ne
devra
rappellent,
aux
une
termes
jamais
fois de
duquel
la
6tre recherchee
que par des moyens pacifiques. Les douze membres du ,Conseil doivent
constater que, d6s le premier moment, dans cette lutte qui se d6roule
sur son
port6 son diff6rend avec le japon devant
engag6e h accepter les propositions faites
vue d'un r6glement pacifique.
membres du Conseil d6sirent, rappeler qu'aux termes
texritoire, la Chine
a
la Soci6t6 des Nations et sest.
par celle-ci en
Les douze
io du Pacte de la Soci6t6 des Nations, tout Membre de la
Soci6t6 s'est engage A respecter et h maintenir Fint6grite territoriale
et l'ina6pendance politique pr6sente de tous les Membres de la Soci6t6:
de Farticle.
Ils ontIe droit, h titre amical, d'appeler l'attention sur cette disposition
d'oA il r6sulte notamment, h lour avis, qu'aucun empi6tement sur
1'int6gr#6 territoriale et auc,une atteinte h l'ind6pendance politique
d'un Membre de la Soci6t6 des Nations, commis
ne
sauraient 6tre
de la
reconnus comme
vqlides
au
m6pris
de l'article io,
et effectifs par les Membres
Soci6t.6,
FoPinion publiquedu monde, le japon a Fimmonse responmontrer juste et mod6r6 dans ses rapports avec la Chine.
11 a (j6j;k reconnu cette respons abilite dans les termes les plus solennels
on signant, en 1922, le Trait6 de's neuf Puissances, par 1equel les parties
Devant
sabilit6.de
se
express6ment de respecter la souverainet6
l'ind6pendance, ainsi. que 1'.int6grit6 territoriale et administrative de
la Chine. Faisant. appel h son sentiment 6lev6 do Fhonneur, les douze
membres du Conseil demandent au japon de reconnaitre les obligations
que lui imposent la situation particuli6re, ainsi que la confiance que
les nations du monde ont plac6 en lui, en sa qualit6 d'associ.6 h Fqrga7
nisation et au maintien de la paix.
contractantes
ont
convenu.
et
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603
Berichte, VertrAge, diPl6inatische Noten
7. R.6ponse,
i I'appel, du
Le
japon
23, f6vrier, 1932,
date du
en
'pr6sident
du
Conseil
particip6
a
sans
en
Qopyernement Japonais
du.
date du 16 f6vrier 1932. .8)
r6serve - la
de
proc6dure
(Auszug)
r6glement
saurait assur6ment supposer que ces m6thodes
stipul6e
des
mesures
proyisoires, de d6fense qui ne sont interdites par
excluent
aucune r6solution de la Soci6t6, ni que ces m6thodes obligent le japon
dans le Pacte;
on ne
-
h
accepter
d6rogation
une
h
la forme d'une d6cision de la
ses
dispositions
propres
sous
expresses
majorit6.
axiome universellement reconnu qu'aucun trait6 de r6glement pacifique ne met obstacle au. droit de l6gitime d6fense. On semble
regretter surtout que, le japon ne se soit pas mis sans r6serve entre.
C'est
un
coll&gues; mais, malgr6 son grand respect pour eux,
juridiquement et moralement, le droit de s'y refuser: juridiquement, parce qu'il ne -s'6tait pas engag6 h agir autrement; moralement,
dans leur jugement
parce que, tout en ayant la plus grande confiance
les mains de
ses
il avait
et
leur bonne volont6,
en
bien meilleur 6tat
ne
saurait 1'6tre.
il croit
6tre naturellement et n6cessairement
d'appr6cier
les faits
qu'aucune
Puissance
6loign6e
Farticle io du Pacte de la Soci6t6 des Nations.
strictement d6fensives prises, par le japon n'enfreignent
Puissance n'a all6gu6
pas les dispositions de cet article. En effet, aucune
cette disposition du Pacte lorsque d'autres Etats envoy&rent, il y a
cinq ans, Ximportants renforts pour d6fendre Chang-Hai, ni lorsque les
Lappel invoque
4.
Les
mesures
f orces am6ricaines et
britanniques
bombard6rent Nankin, ni
en
aiverses
wat-res occasions dont on se souviendra ais6ment. La disposition en question est excellente, mais elle n'interdit pas la d6fense de soi et n'autorise
h tous les d6bordements et h attaquer impun6pas la Chine h se livrer
ment les autres pays sans, que ceux-ci aient le droit de se d6fendre.
I
5. COmme le japon n'envisage. pas plus qu'on ne 1'envisageait
I'int6grit6 territoriale ou h l'ind6T,
dans les cas pr6cit6s d'attenter
des Nations, il est superflu de dire
Soci6t6
de
la
pendance d'un Membre
voit
ne
pas tr6s' bien la port6e de la
que le Gouvernement japonais
de cette nature commise au
atteinte
aucune
selon
laquelle
remarque
de I'article.io du Pacte ne saurait 6tre reconnue comme valide
*
m6pris
japonais saisit cette occasion de d6clarer
et.solennellement,
que le japon ne nourrit
plus,
ambition territoriale ou politique quelconque en Chine.
et effective.
une
Le Gouvernement
r6solument
fois de
aucune
8. Reschlufl der
V61kerbundsversamnilung
voni
11. Marz 1932
L'Assembl6e,
Consia6rant que les dispositions du Pacte
pli6ables
8)
9)
au
present
Soc. d.
S. d. N.,
Nat.,
diff6rend et
journ.
Off. XIII-E!
journ-. Off., Suppl. Sp6c.
qu'il
en
Ann6e, No.
sont
enti6rement
sp6cialement
est
3(ji
No. ioi, vol. 1.
(Auszug) 9)
ap-
ainsi:
Marz 1932,
S- 384.
S.'87-
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'
604
V61kerrecbt
io
Du
2o
De
principe du respect scrupuleux des Trait6s;Fengagement assum6 par les Membres de la
Nations
qe respecter
l'int6grit6 territoriale
Soci6t6 'des
et de maintenir contre toute agression ext6rieure
et l'ind6pendance politique pr6sente -de tous les
Membres de la Soci&6;
3o De leur
eux
du
obligation de soumettre tout
proc6dures de r6glement pacifique;
Faisant siens les principes formul6s,par
Conseil, M. Briand, dans sa d6claration du
Rappelant'que
h
diff6rend s'61evant entre
aux
douze Membres du Conseil
le Pr6sident
io
en
qxercice
d6cembre 1931,
invoqu6rent
ces
principes
dans leur
appel au Gouvernement japOnais, le 16 f6vrier
1932, ep'd6clarant <(Qu'aucun empikement sur Fint6grit6 territoriale
et aucune atteinte h l'ind6pendance politique d'un Membre de la Socik6
des Nations commis au m6pris de Farticle io ne sauraient 6tre reconnus
nouveau
valides et effectifs par les Membres de la Socik6#1
Consid6rant que les principes r6gissant les relations internationales
et le r6glement pacifique des diff6rends entre Membres de la Soci6t6
comine
rappeks ci-'dessus sont en pleine harmoni*e avec le Pacte de Paris, qui
forme l'un des piliers de Forganisation de la paix du monde, et dont
Farticle 2 stipule que les ((Hautes Parties contractantes reconnaissent
que le r6glement ou la solution de tous les diff6rends ou conflits, de
quelque nature ou de quelque origine qu'ils puissent 6tre, qui pourront
surgir entre elles, ne devra jamais 6tre recherch6 que par des moyens
pacifiques#;
En attendant les mesures qu'elle pourra finalement prendre
pour
le r6glement du diff6rend dont elle est saisie;
Proclame le caract&re obligatoire des principes et des dispositions
-
susmentionn6s et d6clare que les Membres de la Socik6 des Nations
sont tenus de ne reconnaitre aucune situation, aucun Trait6 et aucun
accord
qui pourraient
kre obtenus par des moyens contraires
au Pacte de Paris.
au
Pacte
de la Soci6t6 des Nations ou.
I
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